UDA Vs. GHASI

JUDGEMENT

(1.) This is the defendants second appeal against a decree and judgment of the lower appellate court, whereby the decree and judgment of the trial court was reversed and the respondents suit for ejectment in respect of the disputed land was decreed.

(2.) We have heard the learned counsel for the parties and have examined the record as well. The facts of the case are not much in dispute. Wazir Bux is the recorded Khatedar of the disputed Khasra number. His son Ghasi brought this suit against the appellants with the allegations that they had encroached upon 15 Biswas of this Khasra number and hence should be ejected therefrom. The trial court held that the defendants have wrongfully acquired possession over 15 Biswas of the disputed land and deserved to be ejected therefrom. But as the suit was filed not by Wazir Bux, the recorded Khatedar, but by his son Ghasi, the trial court held that no relief would be granted therein and dismissed the suit accordingly The matter went up in appeal before the Additional Commissioner, Ajmer. Simultaneously with the memorandum of appeal, an application was filed in that court by Ghasis counsel praying for addition of the name of Wazir Bux in the plaint. No specific order appears to have been passed upon this application by the lower appellate court but it can be gathered from his judgment that it was allowed by implication as a reference to the provisions of Order 1 Rules 9 and 10 C P.G. was made in the judgment. The suit was accordingly decreed. Hence this second appeal.

(3.) The main contention raised by the learned counsel for the appellants before us is that as the suit was not instituted in the name of the right plaintiff, it should have been rejected and that a fresh suit should have been brought by Wazir Bux. A.I.R. 1944 Bombay 202 AIR 1952 Ajmer 52 arid A.I.R 1936 Madras 260 were cited in this connection. All these cases are clearly distinguishable from the present one. In the Bombay case, the question involved was as to whether the next friends had a right to pass a general powers of attorney in respect of the minors property. In the Madras case, the question was as to whether there was a bonafide mistake in the name of the plaintiff and whether Order 1 Rule 10 CPC would apply or not. In that case which was one for redemption of a mortgage, the plaintiff impleaded certain persons who were entitled to redeem the mortgage, as defendants on the ground that they refused to join the plaintiff in the suit. The defendants did not ask any relief Under the circumstances it was held that there was no mistake bonafide in the name of the plaintiff. In the Ajmer case, the question was as to whether a person should be added as a party or not. In that case, the person sought to be so added was not a necessary party and his addition was likely to change the nature of the suit and hence the application was rejected. The facts of the present case are, however, different Ghasi brought the suit with the allegations that his father was 100 years old, was unable to manage his affairs which were being managed by him since long. No objections on this score were raised by the defendants in the trial court. Wazir Bux, the recorded Khatedar and the father of Ghasi was examined as a witness in the trial court and he stated that the management was being done by his son and that he, because of his old age, had no knowledge about the particulars of the disputed land. In the first appellate court, Ghasi applied for the addition of Wazir Bux in the plaint and this appears to have been allowed by implication. The real test that should govern such cases is as to whether there has been a miscarriage of justice by a belated addition of a person as plaintiff. In the present case, the decree was granted by the lower appellate court presumably in favour of Wazir Bux, and Ghasi. Wazir Bux was examined as a witness as pointed out above. He was not subjected to any cross examination on she point and this may amount to a tacit admission of the fact that, under the circumstances, Ghasis right to institute the suit was not regarded debat -able by the defendants The defendants led their evidence in the case and never, at any stage, suggested that their evidence or defence against Wazir Bux would have been different from that against Ghasi. Thus to cur minds, no prejudice to the appellants was caused in the case by the lower appellate court allowing the amendment application as it was within its competence. Action under Order 1, Rule 10 C.P.C. can be taken at any stage of the suit and even during the first appeal. We may also refer to A.I.R. 1915 Madras 335(1) in this connection. In that case on the addition of new defendants the plaint was not amended so as to set forth a cause of action against them and both the parties proceeded with the trial just as if the plaint had been amended and the added defendants were not prejudiced by the omission. It was held that, under the circumstances, the irregularity was not such as justified interference by the High Court. The principles decided in this case have applicability to the present one. Where the parties perfectly understood the amendment which should have been introduced, but which was not in fact introduced, and had led their evidence in that consciousness, the irregularity committed in not ordering amendment or addition in the name of the plaintiff would not be a serious one so as to justify interference in revision. The reason being that their has been no prejudice to either party or miscarriage of justice. By applying this principle to the present case, the result would be that the defendants would fail in challenging the validity of the lower appellate courts decision. From the very inception of the suit, they were fully alive to the fact that the suit should have been brought by Wazir Bux but for reasons of old age and physical inactivity, his son Ghasi who was representing him in the outer world had brought the suit which they contested in the same manner in which they would have done as against Wazir Bux. As pointed out above, they took no objection whatsoever on the point in the written statement No questions in cross -examination were put to Wazir Bux when he appeared in the witness box as a witness for Ghasi. There is thus no substance in this appeal which is hereby rejected.